Sisters in Law: Can you take your child away from their dad to live in a new country?

The woman is scared about being “trapped” in Australia as she seeks to escape her “selfish” husband and take their son to the UK forever.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise what rights parents have when it comes to custody.

Question:

I’ve been married for five years and have a beautiful 18-month-old baby. Since having my little boy I’ve realised that my husband is lazy and selfish. He isn’t that interested in our son or me and would rather work or play games online.

To make matters worse, I’m originally from the UK so I’m thousands of miles away from the support of my family.

I’m planning to leave my husband and want to move back to the UK but I’m really worried about custody.

I don’t want to have joint custody and have to live in Australia with no support but I feel like my husband won’t let us leave out of spite.

Can I go to the UK on holiday with my son and then file for divorce? I’m scared I’ll be trapped here forever. – Anon, SA

The woman doesn’t want joint custody with her husband. Picture: iStock

Answer:

We recommend you obtain advice from a family law expert before taking your son to the UK for a holiday, particularly if it is your intention to never return to Australia.

It is unclear if your son has a passport already, however, before an Australian passport is issued the law requires the written consent of both you and your husband.

If your husband refuses to sign the application you can make a written request to the Department of Foreign Affairs and Trade to consider issuing the passport due to ‘special circumstances’. Their website outlines the circumstances where this may be permitted.

If this is denied there is an appeal process to the Family Court who will determine if it is in the best interests of your son to travel internationally.

Your husband has the opportunity to request a child passport alert which means the Australian Passport Office will give special scrutiny to any passport application for your son.

The woman said her husband isn’t interested and just plays games all day. Picture: iStock

Even if you have a valid passport for your son, your husband can still take action in an attempt to prevent you from leaving the country.

Your husband (or you) are entitled to register on the Australian Federal Police’s Family Law watch list for alerts about the movements of your son, but this requires an order to have been filed for or obtained from the Family Court.

You should be aware that if you take your son overseas without the consent of your husband, or even with his consent and then you refuse to return your son, you could be investigated for international child abduction.

These crimes can attract penalties that include jail time.

The Hague Convention is an international treaty that provides a process for parents to determine which country’s laws should apply to the residence and custody of their children.

All matters relating to the care of children are generally best resolved amicably.

In Australia, if you aren’t able to come to an agreement with your husband about the care of your son, the Family Court can impose a decision called a “parenting order” which will be enforceable.

When the court imposes arrangements about children, it will determine what is in the best interests of the child. This includes considering the benefit of the child having a meaningful relationship with both parents, and any need to protect the child from physical or psychological harm. Similar principles apply in the UK.

She wants to return to the UK with their child. Picture: iStock

As a starting point, the law says that it is in children’s best interests for parents to have equal shared parental responsibility, unless there has been child abuse or family violence.

As such, your intentions to have sole custody and reside in the UK may not be permitted by the court.

The court will consider the capacity of each of you to provide for your son. This can include any characteristics specific to the child, yourself or your husband that may be relevant, such as maturity, gender, lifestyle and background.

Parenting orders will be made to cover parental responsibility, contact with other significant people (for example grandparents), communication, any care or development aspects (for example what school he will attend) and disputes.

Parenting orders can be made. Picture: iStock

In terms of filing for divorce, this is something you should be able to do from overseas.

The only requirement for divorce is that there has been an irretrievable breakdown of the marriage.

However, this is usually shown by being separated and living apart from your spouse for 12 months with no reasonable prospect of reconciliation. As such, you will not be able to immediately file for divorce.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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